Literary Libel and How to Avoid It: A Guide for Novelists

Whether it’s your crazy ex-boyfriend, your villainous neighbor or your diabolical boss, chances are you’ve been tempted to use a real person as a character in a short story or novel at least once. But as cases like the recent lawsuit over Kathrynn Stockett’s bestselling novel The Help have shown, trouble can result when real people perceive (correctly or mistakenly) that they’ve been turned into fictional characters.

Here’s what novelists need to know about literary libel and how to avoid it.

What constitutes libel?

According to a recent article on Salon.com, the plaintiff in a literary libel case “must prove 1) that the defamatory fictional character is substantively accurate, otherwise it wouldn’t be recognizable as the plaintiff, and 2) that the portrayal makes serious, negative departures from the truth, otherwise it wouldn’t be defamatory.”

In other words, the resemblance between Tod, your crazy ex-boyfriend, and “Rod,” your fictional protagonist, should be clear to a reasonable person reading your book (besides Tod himself). Furthermore, the “Rod/Tod” in your novel is a convicted felon, while the real Tod only had a handful of misdemeanours.

Confused yet? Let’s run through this one more time: Not only is it obvious that the fictional Rod is basically your boyfriend Tod, but the fictional version portrays the real Tod as crazier, uglier, and more obnoxious than he really is.

How can novelists avoid a lawsuit?

The easiest way to avoid a libel lawsuit is simply to avoid writing about real people. Another obvious option is to base characters on deceased (rather than living) people, as the deceased are much less likely to cause a stink. However, if you’re determined to base a character on that crazy Tod guy, here are some ways to protect yourself.

Change identifying details—not just names.

If you change a character’s name and nothing else, you’re leaving yourself very vulnerable to a libel suit. Consider changing a character’s age, gender, ethnicity, occupation, and physical appearance. You could also change geographical details, dates, or the era in which the story takes place. Tod will have a harder time identifying himself as an 18th century baron than a modern day gas station attendant, and so will the courts.

Create composite characters.

Why not combine two crazy ex-boyfriends into a single character? When you mix the details of two people’s lives and personalities, the resulting character will be all your own, and it will be that much harder for either one of them to recognize themselves in the new character.

Steer clear of false accusations.

You’re most likely to run into legal trouble if you falsely accuse your subject of being charged or convicted of a crime, make false claims about their sexuality, personal hygiene, or drug use, or otherwise imply that they aren’t the fine, upstanding citizen they doubtless consider themselves to be.

If you choose to include unsavory details about your subject, make sure they’re 100% factual. Can you prove that Tod was a drug addict for fifteen years? If not, choose some other detail to write about.

Never, ever write a novel for revenge.

If you write a novel about your crazy ex-boyfriend as a form of revenge, you’re asking for trouble. Not only will you be a sitting duck for a libel case if Tod finds out, but you, the author, will come across as bitter and perhaps a little crazy yourself.

Write to explore the complex dynamics of your relationship with Tod, the intense emotions it provoked, or the humor and poetry within the madness—not to get back at him. Now only will you be safe from libel, but you’ll write a much better novel too.

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